Civil Society and Legal Organizations: Afghan government has tampered with the text of anti-corruption law

KABUL (IWA): Afghanistan’s civil society and legal organizations have slammed the enforcement of “an illegally modified” anti-graft law as a violation of the UN International Convention Against Corruption, Jakarta Principles for Anti-Corruption Agencies and the spirit of establishing independent legal institutions in the country.

A month ago, President Ashraf Ghani’s cabinet endorsed the anti-corruption law. However, the version that was published in the official gazette on October 31 has been illegally modified by a political team — a move that drew strong denunciation from civil society and legal fraternity.

At a news conference in Kabul, Integrity Watch Afghanistan (IWA) Executive Director Sayed Ikram Afzali said: “Under the National Unity Government (NUG), there has not been a single anti-corruption institution that has proved its independence, apolitical nature and effectiveness in the fight against the scourge.

“The unity government, soon after coming into power, repeatedly promised the Afghan people and the international community that it would draft and endorse the anti-corruption law. Though the law was framed within a year of NUG’s rise to power, yet it took the Ghani administration four years to endorse it.”

In Afghanistan, he noted, combating corruption had been limited to international conferences. Approving this law a few weeks ahead of the Geneva Conference on Afghanistan is an obvious example of politicizing the fight against corruption, according to Afzali.

A distorted version of the anti-corruption law, which was earlier approved by the cabinet, was published on October 31, 2018 in the official gazette. Under the original version, to ensure the independence of the Anti-Corruption Commission, a joint governmental-civil society selection committee was planned and proposed. However, the law published on October 31 has removed all non-governmental members from the selection committee.

Under the law okayed earlier by the cabinet, the attorney-general, ministers of justice, women’s affairs, one member each of the Supreme Court, Wolesi Jirga, and Meshrano Jirga, as well as the head of the Independent Commission for Overseeing the Implementation of the Constitution were members of the body. By the same token, heads of the Afghanistan Independent Human Rights Commission, Lawyers’ Union of Afghanistan and Afghan Independent Bar Association, as well as representative of civil society organisations and Journalists’ Association were also members of the selection committee of the Anti-corruption Commission (Article 9).

However, in the misrepresented version of the law published on October 31, only the head of the Supreme Court, the attorney-general and the Independent Administrative Reform and Civil Services Commission (IARCSC) chief remain on the committee.

Gul Ahmad Madadzai, deputy head of the Lawyers Union of Afghanistan who has been involved in the drafting of the law, told the press conference: “Altering the content of the law, especially the key materials, after its endorsement by the cabinet, is illegal.”

An overriding principle behind the creation of independent commissions such as the electoral body, the Independent Commission on Access to Information and AIHRC was that civil society and the legal fraternity would be represented in selection committees, he pointed out. “Crossing out the non-governmental members from the selection committee is contrary to the provisions of the International Convention Against Corruption for establishing independent anti-corruption agencies.”

Mohammad Naser Timory, head of advocacy and communications at Integrity Watch, who was also part of the law-drafting process, commented: “Given the way the selection committee has been tampered with, this commission would be fully governmental and wouldn’t have the required independence in fighting corruption and going after grand graft cases.”

Civil society organizations are concerned the selection process for members of the anti-corruption commission will be symbolic, according to Timory, who believed the government might already have some members under consideration for the commission.

During the four years of the National Unity Government, civil and legal entities in Afghanistan have consistently advocated for the establishment of an independent commission to combat corruption by taking part in the process of drafting this law.

Aziz Rafi, head of the Afghanistan Civil Society Forum who was also present at the conference, charged: “The unity government has no intention of battling corruption. By dragging its feet on establishing independent institutions, it has shown its stance to the Afghan public and civil society organizations.”

Lailuma Nasiri, deputy head for the Afghanistan Justice Organisation, observed: “Law enforcement is a need that people encounter in their lives on a daily basis. Ensuring law enforcement in the absence of independent and effective legal and judicial organizations is impossible.”

The Afghan government had not decisively tried to prioritize the rule of law, she alleged. “Civil society organizations understand the rule of law may probably lead to political tussles in the short run. But for sustainable long-term stability, there is no way other than the one leading to the rule of law,” Lailuma Nasiri explained.

Concluding the conference, Afzali remarked: “Implementation of the law and anti-corruption strategy requires independent institutions with strong authority and apolitical nature that can effectively fight and dismantle corruption networks at different levels of government and society. The experience of the past one and a half decade shows that combating corruption without independent institutions is a recipe for failure.”